It’s October 23, 2021. I am standing on Whadjuk Noongar Boodja in Boorloo. Today this place is known as Perth. For a moment I consider the irony in Aboriginal people protesting their rights on their country to have a say about their culture and heritage. And as I look around and observe the crowd, there isn’t a single politician in sight. We begin our walk.
An Aboriginal elder leads the way, singing in his traditional language the storyline of his ancestors. The chants ring loud along the Derbarl Yerrigan, and the message is clear as the crowd shout “no-veto no bill.” We are protesting the absent right and inability to veto intended and planned destruction to our valued and irreplaceable heritage sites in the new bill. The Aboriginal Cultural Heritage Bill 2021 which is currently in draft form is expected to be introduced this year which will replace the outdated Aboriginal Heritage Act of 1972.
Western Australia’s Aboriginal Affairs Minister Stephen Dawson says the bill will still be introduced, despite the unanimous rejection of the bill from Aboriginal groups. The new bill is set to incorporate more than 100 amendments, including harsher penalties for disturbing sites and the complete removal of Section 18.
Earlier this year Premier Mark McGowan said his government would continue to grant section 18 approvals under the existing legislation while the new bill was still being reviewed. Section 18 of the current 1972 Act allows land users to apply to the Minister of Aboriginal Affairs for permission to disturb an Aboriginal site. In the 2021 annual Department of Planning, Lands and Heritage report, 84 Section 18 applications were processed.
Terra Rosa land and heritage consultancy managing director Scott Chisholm says the section 18 process was set up to destroy sites, and that has become the dominant conversation we have. “The current framework really supports the idea that we can just chop things up into small parcels and auction them off.”
He says even if Traditional Owners are requesting for sites to be registered, they aren’t likely to be looked at unless they are being assessed under Section 18, “At that point it is kind of a moot argument,” he says. “If everything is getting assessed as it’s getting destroyed then there is no ability for management, there is no ability for ownership, it’s purely reactive. That’s a real problem.”
As I listen attentively to Scott, I remember one of Nana’s story’s. She is talking about a creek located in regional Western Australia, about 100 kilometres from Leonora near Leinster called Cody’s Creek.
She tells me the land developers gained consent to disturb the site under the Section 18 process. She says they bulldozed through the creek, knocking the trees down and stopping the flow. Nana says you should never touch creeks or hills and creeks always need to be flowing. “We hit the roof. We said you’ve just broken our hearts, just to see this. You destroyed this creek.”
Chisholm has been working with Aboriginal groups for more than 15 years and says it is quite difficult to register an Aboriginal heritage site in Western Australia in its current state.
He explains there is no clarity or set criteria provided by the government in what they are looking for when assessing if a site should be registered. “They say it has to be of importance and significant to Aboriginal people and we have Aboriginal people saying this place is clearly important and significant to us,” he says. “However, the state is saying it’s not a site for some reason and that reason is never clearly or particularly given.”
He says people take custodianship seriously and the process is unfortunately used a lot to undermine custodianship by not having Aboriginal people as primary arbiters. “You are putting people’s cultural safety at risk, and their assumed authority of the community at risk,” he says.
He explains some Aboriginal groups in the Pilbara don’t have any areas that aren’t subject to exploration which makes them fearful for the future. He says it is critical Aboriginal people are included in the decision making of their heritage. “I think we’ve got so long to go before we decolonise heritage management in Australia.” He says our journey right now should be working out how First Nations stakeholders get that primacy.
However, the McGowan government says key stakeholders have been consulted and their feedback has helped design the new bill. But Traditional Owners say it’s not good enough and are calling for the bill to be co-designed with Aboriginal people.
Nanda Widi man from the midwest of Western Australia Clayton Lewis co-leads the Aboriginal Heritage Action Alliance. He believes the new draft bill is inadequate.
“We want to actually have some say. We want Aboriginal people to co-design the act, not have a bunch of bureaucrats sitting in some office somewhere,” he says. “Apparently, from all reports, no one’s seen [the draft bill], except for a few, over six months ago, and they’re saying it’s much the same animal just with different spots.”
Lewis says there has been a lack of engagement and consultation with First Nations people in designing the new bill. “It is written by whitefellas. Those writing the act have no cultural authority. They’re not Aboriginal Lore people,” he says. “I think it’s disrespectful, I think it’s indicative of ongoing genocidal practices to exclude us and to dictate terms to us about our sites in our country.”
Martuwarra Fitzroy River council chair and Nyikina Warrwa Traditional Custodian Dr Anne Poelina co-leads AHAA alongside Mr Lewis and other prominent Aboriginal leaders.
She says there are two key issues with the legislation which need to be addressed. “One is that we have no power to say no,” she says. “And two, we are very concerned that the Minister for Aboriginal Affairs has absolute power to determine whether or not sacred sites can be destroyed in the interest of the state.”
Dr Poelina says it is a disgrace that we can give one person the ability to decide. “What about our interest? What about our culture? What about our spirituality?” She says the new draft bill really needs to go back to the drawing board as it’s not fit for purpose. “These destructions of our sacred sites and our culture and our history is a cost that we as Aboriginal people can’t afford to bare,” she says. “We really need to have the power to veto any destructive development that is going to destroy our culture, particularly our sacred sites, because they are priceless.”
Western Australia’s Minister for Aboriginal Affairs Stephen Dawson said a power for veto would impede positive relationship building between Traditional Owners and land users. He says the foundation of the Aboriginal Cultural Heritage Bill is to encourage consultation, negotiation and agreement between Aboriginal people and proponents, upholding the United Nations Declaration on the Rights of Indigenous Peoples. However key stakeholders disagree.
The Aboriginal Heritage Action Alliance have lodged a complaint with the United Nations committee against the state government for failing to fulfil its obligations under the convention on all forms of elimination, particularly race discrimination.
Dr Poelina says the new bill does not adequately address the structural and historic issues and inequalities which are the country’s current and past legacies of destruction of cultural heritage in WA. This is evident in the destruction of sites such as the 46,000-year-old Juukan Gorge cave and the current proposal and threat to extract water from the Martuwarra Fitzroy River. The Martuwarra Fitzroy River is a national heritage site listed in 2011 and is the largest Aboriginal Cultural Heritage site in Western Australia.
In November 2020 the McGowan Government released a discussion paper for comment to consider the future of the Fitzroy River. More than 43,000 submissions have been made from across the nation calling for the protection of the Martuwarra.
Dr Anne Poelina says the river belongs to all of us.
“We are under a law of obligation and a guardianship of responsibility,” she says. “We need to look after the river, because we are caretaking it for the nation and the world.”
Traditional Owner and Nyikina elder Rosita Shaw, who belongs to the Raba Raba people of the Martuwarra Fitzroy River, says without the river there will be nothing for younger generations to be able to connect to, and they will suffer the loss of culture, knowledge, and respect.
“We teach them about respect,” she says. “If you look after the land, the land will look after you, if you do the right thing by the land, then the old people will do the right thing by you.”
Traditional Owner and proud Karriara, Ngarluma, Yindjibarndi, Whajduk man Ashton Ramirez-Watkins agrees and says the ability to relate to and understand culture is important. “It’s a fundamental part of your identity and Aboriginal worldview.” He says Aboriginal culture is endangered and the destruction of sacred Aboriginal sites profoundly impacts Aboriginal identity.
Ramirez-Watkins says when Aboriginal people are not in the same room as the people making decisions about their culture and heritage the practices of colonisation and discrimination continue. “There needs to be some level of accountability connected to our generation and the generations before us who have allowed this to happen,” he says. “When there is nothing left and there are only holes in the ground, the young ones will come to us and say, ‘well, what happened?’”
He says it’s not about compromise but understanding each other. It’s about a shared intention and realising it’s not two different communities. It’s our community.
I’d be lying if I said I wasn’t worried about the future of my culture and heritage, but I remain hopeful.